Welcome to Texas justice: You might beat the rap, but you won't beat the ride.

Wednesday, November 30, 2011

Public hearing to evaluate eyewitness ID model policy

Tomorrow I'll be spending my afternoon at a public hearing at the capitol to discuss the draft model policy on eyewitness identification procedures for potential use by Texas law-enforcement agencies. In the statute, HB 215, the Bill Blackwood Law Enforcement Management Institute of Texas (LEMIT) out of Sam Houston State was charged with creating a model policy, with input from law enforcement and special interests like my employers at the Innocence Project of Texas (I participated in their working group as part of my day job). They'll receive public comment through tomorrow's hearing and then come up with a final version in the next couple of weeks.

Hopefully the MSM will pick up on the story, which hasn't yet gotten a lot of attention but which will affect law-enforcement agencies in every corner of the state. Here are the public hearing details if you're interested in attending, either to testify or just to watch:

It's nice of them to add the extra time in the evening for folks who can't make it there during the workday, but I know most of the experts, exonerees and advocates, your correspondent included, are planning to testify in the afternoon session.

Once LEMIT has published its model policy, local law enforcement agencies must produce their own departmental policies by September of next year. Those policies don't have to use language from LEMIT's model, but if history is any guide, most of them will. (The Innocence Project of Texas plans to request all those local policies - more than 1,000 of them - under open records next fall to determine which departments included all the important elements and which ones are still using inadequate procedures.)

For many years eyewitness testimony was considered gold standard evidence in court. Today, scientists understand that it's really a form of "trace" evidence, and like any trace evidence it can be contaminated during its collection. In this case, though, rubber gloves, tweezers and zip-locs won't do the trick. Enacting procedures like those required in the new law and actively training detectives on acceptable methods is the only long-term way to change what's happening at the police station when these lineups are performed.

If LEMIT's model and local departmental policies, in their final form, end up based on nationally recognized best practices, as the legislation clearly calls for - including criteria for filler choice, blind administration, sequential presentation, witness admonishments, the gathering of confidence statements, etc. - it will improve the reliability of eyewitness testimony by reducing (though not eliminating) errors on the front end. As a practical matter, every false accusation prevented on the front end is far preferable to exonerations decades after the fact, which are endlessly thrilling but also always bittersweet.

I'll update this post later today to add a link to the IPOT's written testimony, which I'm presently finalizing, and with a link to a live video feed for tomorrow if and when I find one.

I've seen way too many suggestive photo or live show-ups employed throughout the years to make the identification come out the way the cop thinks is should at the time. It is many, many years overdue to have a fair and uniform procedure for the development of eyewitness identification evidence. Just ask Timothy Cole's family...

"The Innocence Project of Texas plans to request all those local policies - more than 1,000 of them - under open records next fall to determine which departments included all the important elements and which ones are still using inadequate procedures.)"

If the defense bar can understand, and use, the inevitable delays or failures in the implementation of these policies, they will surely have a better chance to undermine prosecutors' attempts to secure convictions that are largely, or exclusively, based on eyewitness id.

There's an old saying that says "What I thought I said was not what you thought you heard." The same holds true for eyewitness observation. What I thought I saw may not have anything with what you thought you did or didn't do.

As long as eyewitness testimony is taken as gospel, innocent people will be convicted and guilty ones will get off free. Too many eyewitness accounts are just that, eyewitness accounts and not concrete evidence of anything - and it has nothing to do with snitching and everything to do with an incomplete biased observation compounded by a cop who has to be right and make an arrest.

I'm really glad that there is a public hearing to try and discuss this issue. Maybe there actually is some intelligent life out there after all.

Southern, daily and good for you

Grits for Breakfast looks at the Texas criminal justice system, with a little politics and whatever
else suits the author's fancy thrown in. All opinions are my own. The facts belong to everybody. Who is this guy?

"I always tell people interested in these issues that your blog is the most important news source, and have had high-ranking corrections officials tell me they read it regularly."

- Scott Medlock, Texas Civil Rights Project

"a helluva blog"

- Solomon Moore, NY Times criminal justice correspondent

"Congrats on building one of the most read and important blogs on a specific policy area that I've ever seen"

- Donald Lee, Texas Conference of Urban Counties

GFB "is a fact-packed, trustworthy reporter of the weirdness that makes up corrections and criminal law in the Lone Star State" and has "shown more naked emperors than Hans Christian Andersen ever did."

-Attorney Bob Mabry, Woodlands

"Grits really shows the potential of a single-state focused criminal law blog"

- Corey Yung, Sex Crimes Blog

"I regard Grits for Breakfast as one of the most welcome and helpful vehicles we elected officials have for understanding the problems and their solutions."

Tommy Adkisson,Bexar County Commissioner

"dude really has a pragmatic approach to crime fighting, almost like he’s some kind of statistics superhero"